TREVOR & TREVOR
[2014] FamCA 1140
•17 December 2014
FAMILY COURT OF AUSTRALIA
| TREVOR & TREVOR | [2014] FamCA 1140 |
| FAMILY LAW – CHILDREN – INTERIM – where mother seeks father spend supervised time only with the children – where the father has mental health issues that need to be addressed – where the children return very sunburnt following time with the father – where the father assaulted the mother and he was charged – best interests of the children. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DA, 65DAA. |
| Cowling v Cowling (1998) FLC 92-801 Deiter & Deiter [2011] FamCAFC 82 Goode and Goode (2006) FLC 93-286 Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 MRR v GRR (2010) 240 CLR 461 SS & AH [2010] FamCAFC 13 |
| APPLICANT: | Mr Trevor |
| RESPONDENT: | Ms Trevor |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | DUC | 435 | of | 2013 |
| DATE DELIVERED: | 17 December 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 11 December 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ford |
| SOLICITOR FOR THE APPLICANT: | Booth Brown Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Petrie |
| SOLICITOR FOR THE RESPONDENT: | Kevin Hockey & Associates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders Pending Further Order
That all previous parenting orders be discharged.
That the mother have sole parental responsibility for the children P born … 2008, D born … 2011 and J born … 2012 (“the children”).
That the children live with the mother.
Each party must:
(a) contact the X Contact Centre (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the children spend with the father;
(b) attend the assessment;
(c) comply with any appointments made by the Contact Centre for supervised time;
(d) comply with all reasonable policies and rules of the Contact Centre; and
(e) comply with all reasonable requests or directions of the staff of the Contact Centre.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in order 6 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the father is to have contact with the children each week at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.
The mother must deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 6, then, contact shall occur at the times that are offered by the Contact Centre.
The parties or either of them are to attend and undertake and/or course of therapy, counselling or intervention as is reasonably directed by the Manager or Director of the Contact Centre which could include referrals to other service providers.
The time the children spend with the father under order 6 is to be supervised by the Contact Centre and the father must pay the reasonable fees for the supervision on each occasion of supervision.
The father must not attend the Contact Centre or its vicinity before the time with the children is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the children is to end.
If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on 7 days written notice to the other party and the Court restore the matter to the list.
If during the currency of these orders the parties and the Independent Children’s Lawyer agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.
The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
That the father be at liberty to communicate with the children by telephone each Wednesday and on any of the children’s birthdays in the period between 6:30pm and 7:00pm and on Christmas Day in the period between 9:00am and 9:30am and to give effect to this order the father will initiate the telephone call on a telephone number nominated by the mother in writing to the father within two days from the date of these orders and the mother shall make the children available for the father’s telephone call provided always that the mother shall be at liberty to terminate the father’s telephone call in the event of any untoward, offensive or inappropriate communication between the father and the children.
That the father is restrained by injunction from attending at any school or day care centre which the children may attend from time to time except on occasions where the attendance of either or both parents is to be reasonably expected.
That the mother and father are restrained from making critical or derogatory remarks in relation to each other in the presence or hearing of the children and the mother and father shall each do all things necessary to ensure that no third party makes critical or derogatory comments about the other parent in the presence or hearing of the children.
That the mother and father are to advise the other and to keep the other informed at all times of their current residential address and relevant contact telephone numbers (including both landline and mobile phone number if applicable).
That the mother shall in the event of the children or any of them being hospitalised or receiving urgent medical attention, notify the father as soon as practicable after first contact with the hospital, medical centre, medical practitioner or other health professional.
That the mother as soon as practicable after the enrolment of the children or any of them at school do all things necessary and sign all necessary documents to authorise the school to provide to the father at his request copies of school reports, merit cards, any written material pertaining to the child’s academic activities, school photograph order forms and school newsletters.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Trevor & Trevor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: DUC 435 of 2013
| Mr Trevor |
Applicant
And
| Ms Trevor |
Respondent
REASONS FOR JUDGMENT
The matter for determination is the further interim parenting arrangements for the children P born in 2008, D born in 2010 and J born in 2012.
The father is 42 and the mother 35 years of age. The parties commenced a relationship towards the end of 2006. The parties married in 2010 and separated on 31 October 2013.
The proceedings were originally commenced by the father in the Federal Circuit Court of Australia. In his amended application filed on 30 April 2014 the father seeks orders in relation to property adjustment as between himself and the mother and parenting orders in relation to the subject children.
The mother filed a response on 24 February 2014 and in her amended response filed on 19 May 2014 seeks orders as to property adjustment and parenting orders in relation to the children.
Proceedings were before the court on 26 February 2014 and the parties were directed to engage in family dispute resolution with a family dispute resolution practitioner in Town X. Otherwise the parties were directed to attend a conciliation conference as to financial matters on 27 March 2014.
It appears that a conciliation conference was conducted on 27 March 2014 and that conference did not resolve financial issues.
On 21 May 2014 proceedings were again before the court and orders were made for the preparation of a Family Report. Otherwise the proceedings were to be listed on a date to be advised in 2015, upon the release of the Family Report.
On 14 July 2014 the court ordered that the mother file and serve a Notice of Abuse relating to family violence and that an Independent Children’s Lawyer be appointed to represent the interests of the children. Proceedings were adjourned to 21 August 2014.
On 21 August 2014 proceedings were transferred from the Federal Circuit Court of Australia to this court as a “complex case”. The order for preparation of a Family Report was discharged.
Proceedings came before this court on 8 September 2014 and on that day were adjourned for interim hearing to 16 September 2014. Directions were made for the filing of updated affidavit material.
On 16 September 2014 interim orders were made by consent that in summary provided:
a)For the appointment of a Chapter 15 Single Expert being Dr B, clinical psychologist;
b)For the children to live with the mother;
c)For the father to commence spending time with the children on a day only basis commencing 20 September 2014, one day each weekend from 9:00 am until 5:00 pm and for the father to have electronic communication by Skype or telephone with the children each Wednesday afternoon;
d)For the father to be restrained from attending any school or day care centre at which the children attend except on occasions when parents are expressly invited save that he shall be permitted to attend reading classes with P at his school;
e)That changeovers take place at the X Contact Centre; and
f)For time for each parent on the children’s birthdays, for the father to spend time with the children on Christmas Day and other specific issues orders.
The orders of 16 September 2014 noted that the parties intended to review the arrangements implemented with consideration towards the father’s time with the children moving to overnight time. It was further noted that initial interviews with Dr B would be on 19 November 2014.
Proceedings were relisted on 3 December 2014 in accordance with leave previously granted to the Independent Children’s Lawyer.
On 3 December 2014 proceedings were adjourned for interim hearing to 11 December 2014 in circumstances where the mother had unilaterally suspended the children’s time with the father.
On 5 December 2014 the mother filed an Application in a Case that in summary sought further interim orders as follows:
a)That the children live with the mother;
b)That the children spend supervised time with the father at the X Contact Centre on Saturdays and Sundays each alternate weekend;
c)That the father be restrained from attending at any school or day care which the children may attend from time to time; and
d)That each of the parties be restrained from making critical or derogatory remarks to each other in the presence or hearing of the children.
The father filed a response to the Application in a Case on 10 December 2014. In that response he in summary sought orders in relation to the children’s time with him as follows:
a)Each alternate weekend during school term from the conclusion of school on Friday until the commencement of school Monday or Tuesday if a long weekend or public holiday;
b)As to the child P each Wednesday from after school or alternatively 3:30pm to 8:00 pm;
c)During school holidays for the first half of the mid-year holidays from 11:00 am on the first Saturday until 5:00 pm on the middle Sunday and each alternate week during the Christmas school holiday period;
d)Such further or other periods as the parties may agree;
e)Time during the Christmas festive period and Easter; and
f)That changeovers take place at the X Contact Centre.
The Mother’s Evidence
The mother’s evidence centres around her protective concerns in relation to the children and circumstances she asserts of violence as between herself and the father.
In October 2014 the child D was at X Hospital for day surgery in relation to grommets in her ears. The father, she says, arrived at the hospital at about 10:30 am. The mother noticed that the father appeared agitated and was speaking in a loud voice and swearing in front of the child. The mother sought to leave the room and as she did so the father sought to speak to her in relation to property settlement issues. The mother did not respond.
On returning to the child’s room the father once again sought to engage the mother in relation to property settlement issues. The mother says the father then approached her and struck her in the right breast with his elbow and pushed her with his forearm. The mother said to the father “don’t, get away from me leave or I’ll call security”.
The father continued to push the mother causing her to lose balance and fall against the trolley adjacent to the child’s bed. The father commenced swearing at the mother saying “you’re fucked you don’t know what your fucking doing”.
The child was present and observed the father’s behaviour. The father left the room. Both the mother and child were in tears. Two nurses entered the room whilst the mother was crying. The child said to the mother “daddy is naughty, daddy is a meanie, his naughty doing that”.
The mother reported the incident to the police who attended at her home. The mother provided a statement of what had occurred at the hospital.
The mother was later that evening informed by an officer from X Police that the father had been arrested and charged with assault and an apprehended violence order had been granted. Subsequently the father appeared at the Local Court on 12 November 2014, pleaded guilty and proceedings are listed for hearing on 17 February 2015.
The terms of the interim apprehended violence order are as follows:
a)That the father not assault molest harass threaten or otherwise interfere with the mother or any person with whom the mother has a domestic relationship;
b)The father not engage in any other conduct that intimidates the mother or a person with whom the mother has a domestic relationship;
c)That the father not stalk the mother or a person with whom the mother has a domestic relationship;
d)That the father not go within 100m of premises at which the mother resides or works or specified premises being W Street, Town X; and
e)That the father not approach or contact the mother by any means whatsoever except through the mother’s legal representative or as agreed in writing or as permitted by any order or directions under the Family Law Act 1975 as to counselling, conciliation or mediation.
The mother complains about difficulties in implementing the present interim orders insofar as video communication by Skype is concerned. The mother further complains that when the father takes the children swimming he is not requiring the child D to wear her earplugs or swimming cap with the child’s specialist commenting on 13 November 2014 that one of the grommets had already been dislodged after only five weeks.
The risk to the child is that she may suffer significant hearing loss if her condition is not properly managed.
The mother further complains about occurrences that have taken place since the interim orders whilst the children have been spending time with the father. She says that she always packs water bottles, hats and sunscreen for the children when they are to spend time with the father. The mother ensures that she applies sunscreen and that the children are wearing hats and T-shirts before they leave for time with the father. She says that the water bottles are always returned full.
The mother collected the children on 20 September 2014 after time with the father and noticed that the child D was sunburnt on her face. She also observed that the youngest child appeared very tired having only woken from an afternoon nap at 5:00pm, notwithstanding that his routine is for such a nap earlier in the afternoon.
On the first weekend the children D and P were returned after time with the father with sunburnt legs and faces. The child P said to her “I was allowed to ride around in the front of daddy’s car”. This notwithstanding that the interim orders provided for the father only to transport the children in appropriate child restraints. The children were returned after time with the father in circumstances the mother described as “absolutely filthy and covered in dirt, their faces in particular had sticky food or drink with dirt stuck to it”.
After this contact period with the father, the children D and P referred to the mother as “cranky pants”. That evening the child P said to the mother “dad lied to the lady and told her I didn’t sit in the front but I did. He lied to her and then said to me she silly and don’t listen to her”.
On the weekend of 18 and 19 October 2014 the children were returned to the mother and she observed that the children were extremely sunburnt. The child P said to the mother “we ride our bikes on the street while dad was inside trying to get [J] to sleep”.
Otherwise the children P and D made comments to the mother that give rise to a strong inference of the father’s failure to properly and adequately supervise them or leave the children under the supervision of another.
Comments by the child P give rise to the inference that the father has engaged the child in the property issues between he and the mother.
On the weekend of 1 and 2 November 2014 the children spent time with the father. The mother wrote on the contact form at the Contact Centre a note reminding the father about the child D wearing her earplugs and swimming cap also informing him that she had had a high temperature and that she had packed Panadol for the child. On return from time with the father the child D informed the mother that she had not worn her earplugs and that “no dad says I don’t need them”. The Panadol provided for the child had not been used.
On the weekend of 15 and 16 November 2014 the children were to spend time with the father. At about 4:00pm on 16 November 2014 the mother received a phone call informing her that the child P had been seen down at the local park on his own. The mother phoned the police who later informed her that they had attended at the park and the child was not to be seen but they had attended at the father’s home and all three children were fine.
The mother’s concerns in relation to the children’s presentations after time with the father are supported by records from the X Contact Service (Exh D).
The mother expresses concern that a brown snake had been recently seen at the park and that the child is too young to be left unsupervised.
On collecting the children after their time with the father both D and P were extremely sunburnt. Both children to her observation were in significant pain and had difficulty sleeping that night because of the sunburn. The child P informed the mother that he had gone down to the park on two occasions without the father as “dad was busy”. The child P also informed the mother that the father permitted the child D to ride in the front seat of his car.
On the weekend of 29 and 30 November 2014 the children spent time with the father. The mother provided hats and applied sunscreen before changeover. On collecting the children after their time with the father both D and P were significantly sunburnt. The child P revealed that the father had smoked whilst the children were in his care. The child D revealed that they went to the water park and she did not have her earplugs in.
The mother expresses concern in relation to the father’s lack of discipline in relation to the child P and also with his use of inappropriate language with the children. The child P said to the mother “dad says I’m allowed to swear, but I don’t”.
The mother expresses concern in relation to the father’s mental state in that to her perception it is deteriorating and that the father may present a danger to the children by way of his poor parenting decisions and lack of insight into the well-being of the children.
A report from the clinical specialist psychologist at Interrelate Town X dated 28 November 2014 notes as follows:
[P]…. Has continued to access counselling at Interrelate, [Town X]. He has had 9 appointments to date and further appointments have been made.
Since my last letter dated 11th September 2014 [the mother] and [P] have reported some events that are of concern with regard to [P’s] safety as well as the safety of his younger siblings. I made a risk of harm report to the NSW Department of Family and Community Services on 28th November, 2014 outlining the safety concerns.
In addition to this I have observed a change in how [P] has presented to counselling in the last two sessions. This includes reduced compliance with requests to finish in activity or to pack away and clean up, and an increased reluctance to discuss difficult feelings or issues. [P] has also been less able to focus on activities and appears more agitated
[P] reported feeling scared (24th of November session) but did not specify what was causing this feeling….
The Father’s Evidence
The father takes issue with many of the matters complained of by the mother. He asserts that the mother has attempted to do everything possible during these proceedings to make him look bad and at all times to paint him out to be a monster.
As to the mother’s complaint in relation to the children’s sunburn, the father says that he is aware that the children are young and vulnerable to the sun. He further says that he would never let the children outside without sunscreen or a hat. He accepts that the children may have suffered sunburn whilst with him, spending lengthy time at the pool outdoors and he undertakes to do more in the future to combat sunburn.
As to the child D, he asserts that he makes the child wear her earplugs and swimming cap when she bathes or showers.
The father acknowledges that he permitted the child P to go down to the park on his own. The park being about 100-150m from the father’s home. The father acknowledges that police officers in Town X attended at his home in relation to the incident. The father acknowledges that snakes in general are prevalent in Town X and likely to pop up anywhere.
Importantly the father denies that he has any mental health issues. He says he has never been admitted to hospital for mental health issues nor have the police been called due to his mental health concerns. He says that he received counselling once when his mother passed away and cannot understand why his mental health issues are being brought up by the mother. The father provided a medical certificate dated 12 July 2014 from his general practitioner. The certificate provides:
This is to certify that I have examined of [the father] today, and I confirmed that he had a past history of depression (due to a death in the family) , still on low dose of medication and he is very comply (sic) with medication and [the father] currently not having any symptoms of depression or other mental health issues.
It was conceded on behalf of the father that he had unilaterally and without any medical advice ceased taking his medication several months ago.
The Objective Evidence
The mother has previously complained to the police in relation to incidents of violence at the hands of the father. These are detailed in her statement to the police dated 22 December 2013 (Exh F).
Documents were introduced into evidence from the medical centre that had historically been attended by the father (Exh E). The records reveal the father having a history of anxiety with depression as far back as October 2004. He was prescribed Effexor in August 2010 and thereafter from February 2011 has been on a constant dose of Lexapro.
In February 2003 the father was referred to Dr E with the referral letter noting: “thank you for seeing [Mr Trevor] who has been depressed and needs counselling”.
In June 2008, the father self-presented to the X Hospital with “constant anxiety”. Admission notes record:
black and white person – unable to socialise – on edge all the time, irritable with little provocation…… Has recurring thoughts about past – guilt how he has treated people especially women…. Does not want to jeopardise relationship but sounds very demanding.
In July 2008, Dr N visiting psychiatrist with the G Health Service reported to the father’s general practitioner:
He was extremely anxious during the interview and gave a history of having had increasing anxiety over the last 3 years. His clinical picture is mixed, but is mainly agoraphobia with panic disorder. Although we (sic) has some traits of perfectionism this is not the extent of being obsessive compulsive.
From the age of 19 his life has been one of compulsive work with little other diversion. … He feels he has lost his social skills because of the shiftwork he has had to do and now only really feels “safe” when he is at home….
I have explained to him…. That the main two approaches are cognitive behavioural therapy plus or minus medication. At the present time he is unable to focus on a psychological approach so I think will need to be on medication, at least initially. I therefore commenced him on venlafaxine (Effexor) 37.5 mg in the morning …
In August 2008, Dr N reported:
he feels there has been some improvement in his anxiety since he commenced the venlafaxine…. But he is still having significant feelings of panic…. I have agreed for him to increase the dose to 75 mg per day…
X Hospital records of 24 September 2008 noted “they have separated after altercation where [the father] grabbed [the mother]… Behaviour is continuous, easily frustrated, perfectionist anger control issues”.
In September 2008, Dr N on reported:
… He told me that he had been unable to tolerate the 75 mg of venlafaxine and had ceased the medication. His anxiety and perfectionist behaviour has of course continued and has led to the couple separating at present. [The father] is trying to rationalise his work in that he is in the process of selling his [business] and returning to cooking. He has agreed to go back on 37.5 mg of venlafaxine as he felt that was helping.
[The father] has continuing problems of managing his tension and anger and it would be a good idea if he was referred to a clinical psychologist for cognitive behavioural therapy including anger management….
In July 2009 the father was referred to Mr T with the referral letter noting: “for ongoing anxious mood with hxof loss of mother 2 yrsago and he has had separation with his defacto relationship 10 mnths ago. Thanks for seeing him for CBT and psycho Management – Diagnoses: ?Anxiety disorder”.
In July 2009 Dr N reported:
as you know we has (sic) had problems with tension and anger. With his perfectionist behaviour and inability to tolerate any compromise he is finding his situation, and in particular his relationship, difficult. He informed me that he had seen you recently and that you had prescribed duloxetine 60 mg per day. He said that he only took two tablets of this as he had become violently ill with diarrhoea and nausea.
We discussed the options for treatment and he has again accepted that it might be helpful for him to see a clinical psychologist for cognitive behavioural therapy, a recommendation he did not follow up on when I last saw him….. He has also elected to go back on venlafaxine 37.5 mg per day as he felt this helped and he knows of the side-effects on himself.
The X Hospital records include a communication from the mother dated 27 October 2010 to Dr N that records:
(after an incident at the father’s work) this triggered off an anxiety attack this morning, [the father] rang me wanting [Dr N’s] phone number saying he hates feeling like this & wants it to stop & asking when is he going to feel normal again. He felt like a failure for walking out of the job & hates that his anger & OCD takes over him
These attacks happen once every 2 to 3 months he will be teary and see a GP, then take medication for 2 – 3 days feel good then say he’s fine he doesn’t need medication there is nothing wrong with him.
His anger has been under control since taking an anger management course but in recent months he has been on edge throwing, hitting things around the house in front of our son and very verbally abusive towards me. There had been a previous occasions of physical abuse.
He will presented today most likely apologising for wasting time with you yet 1 hour ago he was demanding an appointment with Dr [N]. He will ask for medication and then only take it for a few days – it is the same cycle every time.
I hope some of this is of help – the two main issues are his OCD & anger. He also says he has low self-esteem.
In a report from Dr N, visiting psychiatrist to the father’s general practitioner dated 27 October 2010 Dr N notes:
I saw [the father] at his request on 27 October 2010. His anxiety symptoms have continued and include a range of obsessive compulsive symptoms as well as the panic.
He tells me that he has attended the anger management classes and that seems to have helped somewhat.
Overall he is finding it difficult to cope with his continuing mixed anxiety disorder and I have again strongly recommended that he seek CBT with your help with a referral to a clinical psychologist. I think that it is worth trying another medication as he takes the venlafaxine only for a short time as it makes him feel “emotionally numb”. I have therefore suggested that he take this escitalapram 10 mg in the morning…. I will review him in three weeks…
Regrettably there has been no review.
The Independent Children’s Lawyer
The Independent Children’s Lawyer provided a minute of proposed orders (Exh H).
The Independent Children’s Lawyer identified various areas of concern as follows:
a)The mother’s allegations as to recent domestic violence and the father being charged with assault on her;
b)The objective evidence in relation to the children’s significant sunburn;
c)The eldest child being allowed unsupervised in a local park;
d)The children being left in the care of the father’s housemate;
e)The father’s failure to administer Panadol to the child D;
f)The father’s failure to ensure proper care of the child D in relation to her grommets; and
g)The youngest child J’s disrupted sleep routine whilst in the care of the father.
The Independent Children’s Lawyer expressed significant concern in relation to the absence of any current evidence as to the father’s mental health status, particularly in the circumstances where the father has unilaterally ceased taking his long-term medication.
The Independent Children’s Lawyer contended for orders that in summary provided:
a)That the children live with the mother;
b)That the children spend time with the father under supervision at the X Contact Centre;
c)That the father communicate with the children by Skype or telephone each Wednesday and on the children’s birthdays between 6:30 pm and 7:00 pm and on Christmas Day between 9:00 am and 9:30 am;
d)That the father be restrained from attending any school or day care centre which the children may attend from time to time except on occasions where parents or other caregivers are expressly invited to attend a school or day care save that the father shall be permitted to attend reading classes with P at his school;
e)That the parents be restrained from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children;
f)That the parents keep each other informed of their current residential and contact telephone numbers;
g)That the parents keep the other informed in the event of the children or any of them being hospitalised or receiving medical attention;
h)That the mother do all things necessary to ensure that the father receive directly copies of all school reports and merit cards and any written material pertaining to each child’s academic or extracurricular activities and furnish to the father within seven days of receipt copies of all order forms for school photographs.
Parenting
In Deiter & Deiter [2011] FamCAFC 82, the Full Court (Finn, Thackray & Strickland JJ) said:
61. The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made…
62. We are aware that in Goode and Goode (2006) FLC 93-286 the Full Court referred with some approval to the following statement made in Cowling v Cowling (1998) FLC 92-801 (our emphasis added):
18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.
63. In our view, the proposition contained in the final sentence of the quotation is most important. In any event, in Goode and Goode, the Full Court said:
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply where:
a) there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b) in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
c) if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
Best Interests of the child
The Additional Considerations: s 60CC(3)
Regard has been had to each of the additional considerations set out in section 60CC(3) of the Act. The relevant considerations are as follows:
a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
There is no relevant evidence as to this consideration.
b)The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
The children are settled in the circumstance of their mother as primary carer both during cohabitation and after separation. It is to be inferred that she is their primary attachment especially in regard to the younger children.
The father’s relationship with the children is problematic. It appears to be overshadowed by his long term mental and psychological issues of which there is an extensive history. A history that reveals the father’s lack of engagement with his health professionals that could facilitate proper management in terms of regular intervention by Dr N and engagement in CBT therapeutic intervention as has been recommended regularly.
c)…
ca) …
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother’s proposal seeks to have the children’s time with the father be in safe and supervised circumstances. This will be a change in terms of overall time with the father but would be more appropriate having regard to safety concerns discussed herein. An interruption to the present arrangements for time with the father will not be for any inordinately long period as it is likely that a final hearing is about six months away.
e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affected the child’s rights to maintain personal relations and direct contact with both parents on a regular basis;
The parties reside in the same town. The X Contact Centre has no unreasonable delay in time being made available, subject to intake interviews.
f)The capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
There is no issue in regard to the mother.
The father’s capacity, must at this stage, having regard to the objective mental health evidence, be subject to significant reservation. If the mother’s assertions as to his conduct and negligent care of the children are born out, then he presents as a risk in his capacity in this regard.
g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The children are young and require appropriate and careful supervision. This imposes an obligation on the father that by inference he is unable to meet.
h)…
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
This has been touched on in considering the above factors. At present as submitted by the Independent Children’s Lawyer there a significant reservations as to the father as discussed above.
j)Any family violence involving the child or a member of the child's family;
There are untested allegations in this regard by the mother. The father tendered in evidence as part of his case the mother’s police statement referred to above, that contained her complaints of violence by the father. These are supported by the father’s medical records.
k)If a family violence order applies…
There is an interim apprehended violence order and an assault charge against the father. The circumstances are referred to above. The matter is listed for hearing in February 2015.
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The nature of the issues precludes this being a relevant consideration.
m)Any other fact or circumstance…
…
The Primary Considerations: s 60CC(2)
The primary considerations are:
(a) The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The mother’s relationship with the children as primary carer in the overshadowing circumstance of the father’s conduct and health issues is important to the children and must be maintained.
On the other hand the father’s relationship presents objective physical risks for the children in his care and the difficulties presented by his mental health issues identified above. It cannot be important and valuable to the children to continue on the same basis. A continuation of uncontrolled time between the children and the father is not indicated by the evidence thus far.
Section 60CC(2)(b) – need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Much of the discussion in relation to this factor is set out above. There is concern expressed for the children in the father’s care by the Independent Children’s Lawyer and the mother arising from the circumstances detailed above. This factor is given more primacy by reason of s 60CC(2A). Indeed this issue is almost determinative of the orders to be made.
The Presumption as to Equal Shared Parental Responsibility
In the circumstances of this matter and arising out of the discussion above it is not appropriate that the presumption apply. There are reasonable grounds to believe that the father has engaged in family violence. However otherwise there is sufficient in the circumstances above to make it inappropriate for the presumption to apply.
Section 65DAA: In light of there being an no order for equal shared parental responsibility, there is no requirement to give consideration to whether the child spending equal time or substantial and significant with each of the parents is in the best interests of the child and reasonably practicable.
Orders to be made are determined by the best interest consideration set out above.
It is readily apparent that the best interests of the children at present are reflected substantially in the orders sought by the Independent Children’s Lawyer.
However, there is some reservation as to the father having time with the children at present outside the controlled circumstance of the Contact Centre. He has unilaterally stopped his long term medication. Whether that has impacted on his demonstrated poor judgment that in various ways has put the children at risk or impacted on his parenting style complained of by the mother is not known. There is an inference that it has.
Until such time as he has cogent evidence as to appropriate engagement with his health professionals and a willingness to follow the pathway designed by them for him such time should not occur.
In the best interests of the children orders will be made as set out at the forefront of this judgment.
I certify that the preceding eighty eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 December 2014.
Legal Associate:
Date: 17 December 2014
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